Myers-Sherman Co.Download PDFNational Labor Relations Board - Board DecisionsDec 3, 194671 N.L.R.B. 910 (N.L.R.B. 1946) Copy Citation i In the Matter of THE MYERS -SHERMAN COMPANY , EMPLOYER and DISTRICT 50, UMWA, AFL, PETITIONER Case No. 13-1t'-3787.-Decided December 3, 1946 Mr. E. M. Davis, of Streator, Ill., and Mr. T. C. Kammholz, of Chicago, Ill., for the Employer. Mr. Joseph Marchesi, of Peru, Ill., for the Petitioner. Mr. Alvin Walling, of Streator, Ill., for the Independent. Mr. P. L. Siemiller, of Chicago, Ill., for the Machinists. Mr. Samuel G. Hamilton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Streator, Illinois, on August 16, 1946, before Robert T. Drake, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Myers-Sherman Company is an Ohio corporation with its sole office and plant at Streator, Illinois. It is there engaged in the manu- facture of milking machines, hammer mills, and molasses feed impreg- nators. For this purpose it purchased during the year 1946 in excess of $200,000 worth of raw materials, consisting of steel iron castings, nickel silver castings, oax lumber and skids, more than 20 percent of which was shipped from points outside the State of Illinois. During the same period the Employer sold in excess of $850,000 worth of finished products, more than 80 percent of which was shipped to points outside the State. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. 71 N. L. R. B., No. 146. 910 THE MYERS -SHERMAN COMPANY II. THE ORGANIZATIONS INVOLVED 911 The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. International Association of Machinists , Lodge 1239 , herein called the Machinists , is ti, labor organization , claiming to represent employees of the Employer. Independent Metal Workers Union , herein called the Independent, is an unaffiliated labor organization , claiming to represent employees of the Employer.' III. TILE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Peti- tioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. Ti I E APPROPRIATE UNIT The parties are generally in agreement that the appropriate unit should consist of all production and maintenance employees, including the watchman, but excluding all office and clerical employees, and all supervisory employees. There exists, however, a dispute with respect to certain classifications which are fully discussed below : Leadmen: The Petitioner desires their exclusion as supervisory em- ployees. The Employer and the Machinists desire their inclusion. The Independent does not state its position. Apparently these ein- ployees work with, and perform work similar to that of, the men in their respective groups. Although leadnlen may occasionally make reports and recommendations concerning the conduct, efficiency, and qualifications for a change In status of the employees in their groups, no action is taken on such reports or recommendations without an inde- I The Machinists and the Petitioner contend that the Independent is not a labor organ- ization within the meaning of the Act and therefore has no standing in this proceeding In support of its position, the Machinists argues that the Independent is not a functioning union in that provision has not been made for dues and regular meetings. The Independ- ent, although not yet complelc in its fprmal organization, was represented at the hearing by its president, who testified that it was formed for the purpose of collective bargaining with respect to wages, hours and woi king conditions, and that a president and secretary had been elected The objections of the -Machinists are clearly diiected to internal mattei s and not to the status of the Independent as a labor organization within the meaning of the Act. It is clear that the Act piesciibes no particular forni of internal organization as a preicgnisite to status as a labor organization We find that Independent is a labor ci ganization within the meaning of Section 2 (5) of the Act Mutter of P I du Pont de Ncmonri and Company, 63 N L It B 1357, -Latter of Industizal Collieizes Corporation, d5 N L R B 6S3 7l7734-47-von 71 59 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendent investigation and decision by the works manager.2 Since an independent investigation follows any such recommendation by a lead- man, it is clear , that leadmen do not have the authority "effectively" to recommend changes in the status of employees . Accordingly, we are of the opinion that they are not supervisory employees within the meaning of our usual definition and we shall include them in the unit.3 Shipping department employees : The Machinists and the Employer desire their exclusion ; the Petitioner and the Independent do not state their position . These employees, including the leadman,4 spend more than 90 percent of their time physically handling incoming and out- going shipments of raw materials and finished products. The remainder of their time is spent in clerical work.5 We shall include them in the appropriate bargaining unit. The cost accountant and the stock control employee : The Petitioner, the Machinists , and the Independent desire their exclusion , whereas the Employer would include then. These employees work under the direct supervision of the works manager, who is also the presidents of the Employer. They are sons of the vice president ' of the Employer, who is in charge of the hiring of employees . They work in the shop and tool check rooms in the warehouse . Apparently they spend much of their time ni°clerical work and the balance of their time in work closely related to production . The cost accountants has a desk in the toolroom . He is responsible for the checking in and out of small tools . These duties occupy approximately 50 percent of his time. The stock control employee 9 keeps the production employees advised as to the supply situation, and the purchasing agent advised as to the material that is required to be ordered . His duties relate directly to the production operations , the flow and control of material, and inventory problems . Although their duties are in part similar to factory clericals , whom we frequently include in a production and maintenance unit, we are of the opinion that by virtue of their relation- ship to the vice president of the Employer, who is one of its active 2 The works manager apparently is in daily contact and well acquainted with all em- plovecs in the shop It appeals that most of the employees discharged in the past have been discharged by him w ithout consultation or recommendation 3 Matter of Kltcintat Pine Box Co and T. V. Wilkins Co , 65 N. L R. B 1201 ; Matter of The Toledo Edison company, 63 N L. R B. 217. 4 James Walsh. s Prior to July 13, 1946, there were four female employees in the shipping depaitment at least one of whom performed a substantial amount of clerical work Three of these employees were discharged on July 13, and the remaining female employee now works in the machine shop The greater pact of the clerical work formerly performed by these female employees will be transferred to the Employer's office when this clerical work is resumed C R L Sherman, who acts also as general superintendent of the plant. 7 R G Myers 8 Clarence Myers John Myers. THE MYERS-SHERMAN COMPANY 913 executives, their interests are sufficiently distinguished from those of the other employees to warrant their exclusion from the unit.10 We find that all production and maintenance employees of the Employer, including watchmen, leadmen, and shipping department employees, but excluding office and clerical employees, the cost account- ant, the stock control employee, executives, superintendents, foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. The Machinists contends that the Independent should be denied a place on the ballot for the reason that it is not a functioning labor organization within the meaning of the Act. We find this contention to be without merit.ll Although the Petitioner contends that the Machinists and the Inde- pendent have not shown enough interest in this proceeding to be allowed a place on the ballot, we are satisfied that the showings of the Machinists and the Independent warrant their participation in the election. The Petitioner urges that 34 employees who were discharged on or before July 15, 1946, be allowed to vote. Although the Petitioner does not specifically allege that these discharges were made by the Employer in order to discourage union activity, it in effect questions the good faith of the Employer's claim that they were made necessary by a shortage of materials, and implies that the decision to discharge these employees was not reached until, and was influenced by, the receipt of information of the union membership of the employees affected. However, no charge has been filed by the Petitioner alleging a violation of Section 8 (3) of the Act, and the Employer in effect denies the implication that the discharges were repugnant to the Act. In these circumstances, we are of the opinion that the 34 employees, are not eligible to vote in the election. 10 Matter of Louis Weinberg Associates, Incorporated , 13 N L R. B 66. See Matter of Troy Reining Corporation, 70 N L R. B. 1191. Cf Matter of O. U. Hofmann, et at, 55 N L. R B 683; Matter of Parkers Brass Foundry, 63 N. L R. B 1238; Matter of .Shetby F. Cason, 69 N. L. R. B. 523. 11 See Section II, supra. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with The Myers-Sherman Com- pany, Streator, Illinois, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Thirteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regula- tions-Series 4, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit. or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be repre- sented by District 50, UMWA, AFL. or by International Association of Machinists, Lodge 1239, or by Independent Metal Workers Union #1, for the purposes -of collective bargaining, or by none of these organizations. 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